Adam Porter, et al., Plaintiffs,adam Porter, Plaintiff-appellant, v. Ascension Parish School Board, et al., Defendants-appellees, 393 F.3d 608 (5th Cir. 2004)

This case highlights the difficulties of school administrators charged to balance their duty to provide a safe school with the constitutional rights of individual students when violence in schools is a serious concern. We must decide whether officials within the Ascension Parish School District responded appropriately in removing Adam Porter from East Ascension High School and requiring him to enroll in an alternative school for a sketch depicting a violent siege on the EAHS that he had drawn two years earlier, and was accidentally taken to school by his younger brother. We hold that the only defendant left in the case, EAHS principal Conrad Braud, is entitled to qualified immunity with respect to Adam's First Amendment claim, and affirm the district court's grant of summary judgment.

* A

When Adam Porter was fourteen years old, he sketched a drawing of his school, East Ascension High School, in the privacy of his home. It was crudely drawn, depicting the school under a state of siege by a gasoline tanker truck, missile launcher, helicopter, and various armed persons. The sketch also contained obscenities and racial epithets directed at characters in the drawing, a disparaging remark about EAHS principal Conrad Braud, and a brick being hurled at him. After completing the sketch, Adam showed it to his mother, Mary LeBlanc, his younger brother, Andrew Breen, and a friend, Kendall Goudeau, who was living with the family at the time. The sketchpad was then stored in a closet in Adam's home.

Two years later, Andrew Breen, then age twelve, rummaged through the closet looking for something to draw on, and came upon Porter's sketchpad. Andrew drew a llama on a blank page in the pad, and then took the pad to his school, Galvez Middle School, to show his drawing to his teacher. On March 15, 2001, while riding the bus on his way home from school, Andrew allowed a fellow student to see his drawing. While flipping through the pages of the pad, the student came upon the two-year old drawing by Adam and showed it to the bus driver, Diane McCauley, exclaiming, "Miss Diane, look, they're going to blow up EAHS." McCauley immediately confiscated the pad. On the following morning, McCauley took the pad to Linda Wilson, the principal of Galvez Middle School, and Myles Borque, the in-school suspension coordinator. After viewing Adam's drawing, Wilson called Andrew to her office where he was questioned about the drawing and his book bag was searched. In response to questioning by Wilson and Borque, Andrew admitted that Adam had drawn the picture. Andrew was then suspended for possessing the drawing on school grounds.

The sketchpad was sent to EAHS where school resource officer Robert Rhodes interrupted a meeting to show the drawing to principal Conrad Braud and assistant principal Gwynne Pecue. Alarmed, Braud and Pecue immediately summoned Adam to Rhodes's office where he readily admitted that he had drawn the sketch two years earlier. School officials then searched Adam's book bag and his person and found a box cutter with a one-half inch exposed blade in his wallet. The officials also found notebooks in Adam's bag containing references to death, drugs, sex, depictions of gang symbols, and a fake ID. Adam explained that he used the box cutter in his after-school job at a local grocery store. Although unclear as to when, the record indicates that he later explained that the references to death were part of a homework assignment, and that the "gang symbols" referred only to a group of young men with whom Adam associated, and who Braud did not consider to be a threat.

Adam's mother, Mary LeBlanc, was contacted, and after arriving at EAHS, was told that Adam was being recommended for expulsion. Adam and his mother were then allowed to leave carrying a written recommendation for expulsion and instructions for Adam to remain at home until a hearing could be held. No hearing date was immediately set. Shortly thereafter, Officer Rhodes obtained a warrant to arrest Adam for "terrorizing" EAHS, and Adam was held for four nights at the Donaldsonville jail on charges of terrorizing the school and carrying an illegal weapon.

A week later, on March 23, 2001, Mary LeBlanc met with Linda Lamendola, hearing officer for the Ascension Parish School Board. LeBlanc was advised that expulsion hearings were regularly decided in the school's favor, and that Adam could immediately enroll in the Ascension Parish Alternative School and continue his education if she waived the hearing. LeBlanc signed the waiver form provided by Lamendola, and Adam was enrolled in the alternative school. The following August, Adam was allowed to re-enroll at EAHS, but dropped out in March, 2002.

B

Mary LeBlanc filed suit on behalf of Adam and Andrew against the Ascension Parish School Board, Robert Cloutare in his official capacity as superintendent of the School Board, Conrad Braud, individually and in his official capacity as Principal of EAHS, and Linda Wilson, individually and in her official capacity as principal of Galvez Middle School. The suit, brought under 42 U.S.C. § 1983, alleged violations of the First, Fourth, and Eighth Amendments, and a denial of equal protection and procedural due process and rights secured by 20 U.S.C. § 1415.¹  Defendants filed a motion for summary judgment asserting that no constitutional violation could be shown as a matter of law and claiming the defense of qualified immunity.

The district court dismissed without objection plaintiffs' equal protection, Eighth Amendment, and § 1415 claims, and plaintiffs agreed to dismiss all claims against Linda Wilson. The district court analyzed Adam's First Amendment claim, and concluded that his drawing was not entitled to protection under any of three different standards.²  The court then disposed of Adam's Fourth Amendment claim, finding that the school's search and detention of him was reasonable.³  The court next found that Adam's procedural due process claim was unavailing based on Adam's admission that he had drawn the sketch and that the items found in his book bag and on his person belonged to him, and LeBlanc's signed waiver of his right to a hearing.⁴  Next, the court found that even if Adam had established a violation of his rights, Braud was entitled to qualified immunity.⁵  Finally, the court held that Adam had produced no evidence of a policy or custom on the part of the Ascension Parish School Board leading to a violation of his rights, precluding his official capacity claims against Braud and Cloutare.⁶ 

Based on these findings, the district court entered summary judgment for the defendants. Adam filed a timely notice of appeal from this judgment.

II

"We review the grant of a motion for summary judgment de novo."⁷  Summary judgment is appropriate when "the pleadings and the evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law."⁸  In the present case, the district court granted the defendants' motion for summary judgment on grounds that plaintiffs had failed to raise a material fact issue with respect to any of their constitutional claims, and on the alternative ground that defendant Braud was entitled to summary judgment based on qualified immunity.⁹ 

Although denominated in the alternative, these holdings follow our analysis for determining whether a state official is entitled to qualified immunity. When reviewing a grant of summary judgment based on qualified immunity, we must first determine whether a plaintiff successfully alleged facts showing the violation of a constitutional right by state officials, and whether there is a genuine issue of material fact that the violation occurred.¹⁰  "If there is no constitutional violation, our inquiry ends."¹¹ 

If we determine that the plaintiff's alleged facts make out a constitutional violation, we then ask whether the right allegedly violated was "clearly established" such that "it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted."¹²  We have found that a "right can be said to have been clearly established only if all reasonable officials in the defendant's position would have concluded that the challenged state action was unconstitutional."¹³ 

Even if we find that the right was clearly established at the time of the alleged violation, however, a defendant will still be entitled to qualified immunity if the defendant's conduct was "objectively reasonable in light of `clearly established' law at the time of the violation."¹⁴  The reasonableness of an official's actions must be assessed in light of "the facts available to him at the time of his action and the law that was clearly established at the time of the alleged illegal acts."¹⁵ 

* 1

Adam first claims that EAHS violated the First Amendment in removing him from school based on the contents of his drawing. Uncertain as to the appropriate legal standard under which the drawing was to be analyzed, the district court employed three different approaches before concluding that the drawing was not entitled to First Amendment protection. The parties argue all three standards on appeal.

The first two standards employed by the district court were developed specifically to balance the First Amendment rights of students with the special need of educators to maintain a safe and effective learning environment.¹⁶  The first standard, originally set forth in Tinker v. Des Moines Independent Community School District, provides that school officials may regulate student speech when they can demonstrate that such speech would "substantially interfere with the work of the school or impinge upon the rights of other students."¹⁷  We have found that this standard applies to school regulations directed at specific student viewpoints.¹⁸  The second standard provides that school officials may regulate student speech if the regulation "furthers an important or substantial government interest; if the interest is unrelated to the suppression of student expression; and if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest."¹⁹  We have found that this standard applies to regulations unrelated to any viewpoint.²⁰  Both of these standards are applicable to student expression "that happens to occur on the school premises."²¹ 

Given the unique facts of the present case, we decline to find that Adam's drawing constitutes student speech on the school premises. Adam's drawing was completed in his home, stored for two years, and never intended by him to be brought to campus. He took no action that would increase the chances that his drawing would find its way to school; he simply stored it in a closet where it remained until, by chance, it was unwittingly taken to Galvez Middle School by his brother. This is not exactly speech on campus or even speech directed at the campus.²² 

The third standard employed by the district court in analyzing Adam's drawing was developed to deal with speech constituting a "true threat." As a general rule, the First Amendment prohibits government actors from "dictating what we see or read or speak or hear."²³  However, the government can proscribe a true threat of violence without offending the First Amendment.²⁴  Speech is a "true threat" and therefore unprotected if an objectively reasonable person would interpret the speech as a "serious expression of an intent to cause a present or future harm."²⁵  The protected status of the threatening speech is not determined by whether the speaker had the subjective intent to carry out the threat; rather, to lose the protection of the First Amendment and be lawfully punished, the threat must be intentionally or knowingly communicated to either the object of the threat or a third person.²⁶  Importantly, whether a speaker intended to communicate a potential threat is a threshold issue, and a finding of no intent to communicate obviates the need to assess whether the speech constitutes a "true threat."²⁷ 

The Eighth Circuit's decision in Doe v. Pulaski County Special School District²⁸  is an illustrative application of these principles to an alleged threat made by a student off-campus but carried on-campus by another student. In Doe, a boy in junior high school drafted two letters to his former girlfriend containing "violent, misogynic and obscenity-laden rants" expressing a desire to assault and murder her.²⁹  Months later, the boy's best friend discovered the letters, and after first objecting, the boy allowed his friend to read them. The friend later absconded with at least one of the letters and showed it to the girlfriend. In addition, the boy had discussed the violent letters with his former girlfriend in phone conversations, ultimately admitting that he penned the letters.³⁰ 

After obtaining and reading one of the letters, the girlfriend reported the boy to school officials who recommended him for expulsion. The boy's parents filed suit, arguing infringement of his First Amendment rights. The district court held that the letter was protected under the First Amendment, and did not constitute a true threat because the boy did not intend to deliver it to his girlfriend. Reversing the district court, the Eighth Circuit found that a reasonable and objective recipient would regard the letter as a true threat. In addition, the Eighth Circuit found that the boy intentionally communicated the threat because he allowed his friend to read the letter knowing that his friend was also a close friend of his former girlfriend. Furthermore, the boy discussed the letters with his girlfriend on the telephone on multiple occasions.³¹ 

Unlike the court in Doe, we need not decide whether Adam's drawing would constitute a true threat in the eyes of a reasonable and objective person because Adam did not intentionally or knowingly communicate his drawing in a way sufficient to remove it from the protection of the First Amendment. While it is true that Adam showed his drawing to his mother, brother, and friend Kendall Goudeau, this communication was confined to his own home, and more than two years passed before the drawing serendipitously reached the EAHS campus. That the introduction of the drawing to EAHS was wholly accidental and unconnected with Adam's earlier display of the drawing to members of his household is undisputed. Private writings made and kept in one's home enjoy the protection of the First Amendment, as well as the Fourth.³²  For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place.³³ 

Because Adam's drawing cannot be considered a true threat as it was not intentionally communicated, the state was without authority to sanction him for the message it contained. Although Adam has produced evidence that his drawing comprised the primary impetus for his expulsion from school, he has not established this as a matter of law. Consequently, a fact issue remains as to whether Adam's First Amendment rights were infringed by EAHS, and the district court erred in finding otherwise.

2

Because Adam raised a material fact question with respect to his First Amendment claim, we must proceed to ascertain whether Adam's rights were "clearly established" such that "it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted."³⁴  "This is not to say that an official action is protected by qualified immunity unless the very act in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent."³⁵  Even if we find that Adam's right to First Amendment protection is clearly established, Principal Braud will still receive qualified immunity if his actions were objectively reasonable in light of the circumstances he faced at the time he acted.³⁶  Qualified immunity should be recognized if officials "of reasonable competence could disagree on [whether a particular action is lawful]."³⁷  The Supreme Court has observed that the protection afforded by qualified immunity is broad, protecting "all but the plainly incompetent or those who knowingly violate the law."³⁸ 

It is indisputable that expressions such as Adam's drawing, provided that they do not constitute a true threat, are entitled to First Amendment protection. It is also clear that such drawings are entitled to diminished First Amendment protection when composed by a student on-campus, or purposefully brought onto a school campus where they become on-campus speech subject to special limitations.³⁹  The line dividing fully protected "off-campus" speech from less protected "on-campus" speech is unclear, however, in cases such as this involving off-campus speech brought on-campus without the knowledge or permission of the speaker.

Many courts have applied the Tinker standard in evaluating off-campus student speech later brought on-campus by persons other than the speaker. These cases have dealt with such things as "underground" student newspapers distributed off-campus,⁴⁰  student-run websites created on off-campus computers,⁴¹  and various writings brought on-campus by students other than their original author.⁴²  Although reaching differing conclusions as to the legality of restrictions placed upon the speech in question, these cases consistently approach off-campus speech brought on-campus as subject to regulation under Tinker's "material and substantial" disruption test.

Not all courts have adopted this approach, however, and some have found that off-campus speech is entitled to full First Amendment protection even when it makes its way onto school grounds without the assistance of the speaker.⁴³  Still others have adopted a combination approach, analyzing off-campus speech under a flurry of standards in an effort to comprehensively address all possible legal approaches.⁴⁴  Frustrated by these inconsistencies, commentators have begun calling for courts to more clearly delineate the boundary line between off-campus speech entitled to greater First Amendment protection, and on-campus speech subject to greater regulation.⁴⁵ 

Because Adam's drawing was composed off-campus, displayed only to members of his own household, stored off-campus, and not purposefully taken by him to EAHS or publicized in a way certain to result in its appearance at EAHS, we have found that the drawing is protected by the First Amendment. Furthermore, we have found that it is neither speech directed at the campus nor a purposefully communicated true threat. However, a reasonable school official facing this question for the first time would find no "pre-existing" body of law from which he could draw clear guidance and certain conclusions. Rather, a reasonable school official would encounter a body of case law sending inconsistent signals as to how far school authority to regulate student speech reaches beyond the confines of the campus.

Given the unsettled nature of First Amendment law as applied to off-campus student speech inadvertently brought on campus by others, the contours of Adam's right to First Amendment protection in the present case cannot be deemed "clearly established" such that it would be clear to a reasonable EAHS official that sanctioning Adam based on the content of his drawing was unlawful under the circumstances. Thus, Braud is entitled to qualified immunity.

Even if Adam's rights were clearly established at the time of his expulsion, Braud's determination that the drawing was not entitled to First Amendment protection was objectively reasonable. The Supreme Court has observed that, even when a particular legal doctrine is clearly established, " [i]t is sometimes difficult for an [official] to determine how the relevant legal doctrine ... will apply to the factual situation the [official] confronts."⁴⁶ 

The record indicates that, at the time he recommended Adam for expulsion, Braud was aware that Adam was responsible for the drawing, that the drawing was two or three years old, and that the drawing had been brought to Galvez Middle School by Adam's younger brother. These facts raise the subtle but important legal questions of whether the drawing constitutes on-campus speech, or an intentionally communicated threat. Although we have answered both of these queries in the negative, we cannot say that all reasonable school officials facing these circumstances would reach the same conclusion. For example, looking to case law holding that Tinker applies to a student's website created off-campus and later accessed on campus by others without the student's knowledge or encouragement, a reasonable school official might find that Adam's drawing is on-campus speech subject to regulation under the Tinker test.⁴⁷ 

The Supreme Court has noted the particular relevance of the qualified immunity doctrine to cases such as this, in which school officials are required to make decisions without the benefit of legal or factual clarity:

As with executive officers faced with instances of civil disorder, school officials, confronted with student behavior causing or threatening disruption, also have an "obvious need for prompt action, and decisions must be made on factual information supplied by others." Liability for damages for every action which is found subsequently to have been violative of a student's constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion with the scope of his official duties.... Denying any measure of immunity in these circumstances "would contribute not to principled and fearless decision-making but to intimidation."⁴⁸ 

Without condoning violations of student's constitutional rights, qualified immunity recognizes that school officials, such as Principal Braud, must be allowed to make reasonable mistakes when forced to act in the face of uncertainty.

Given the benefit of hindsight, the effort to fault Principal Braud for failing to conduct a more thorough investigation into the facts has purchase. For instance, Braud could have spoken with Andrew Breen about how he acquired the drawing, or queried Kendall Goudeau and other members of Adam's friend group about whether Adam had recently discussed the drawing or shown it to them. In fairness, however, it was reasonable for Braud to forgo further investigation given LeBlanc's waiver of Adam's right to a hearing. By waiving the hearing, LeBlanc eliminated an important opportunity for Braud and the Ascension Parish School Board to develop the facts more fully.

Given the unique facts of the present case, we find that Braud acted without the benefit of established law that was clear in its application to these facts, and in an objectively reasonable manner. Thus, he is entitled to qualified immunity with respect to Adam's First Amendment claim.

B

Adam's second claim was that EAHS officials violated the Fourth Amendment by searching his book bag and his person immediately after he admitted that the drawing was his. Finding that the search was reasonable, the district court held that Adam had failed to raise a material fact issue regarding his Fourth Amendment claim. We agree that the search was reasonable under the circumstances, and therefore did not violate Adam's Fourth Amendment rights.

Students have a constitutional right under the Fourth and Fourteenth Amendments to be free from unreasonable searches and seizures while on school premises.⁴⁹  At the same time, the "accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause"; rather, the legality of school searches depends upon the "reasonableness, under all the circumstances, of the search."⁵⁰ 

The action must be "justified at its inception"⁵¹  and must be "reasonably related in scope to the circumstances which justified the interference in the first place."⁵² 

Under ordinary circumstances, a search of a student by a teacher or other school official will be justified "at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonable related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.⁵³ 

Under the circumstances present at the time the search of Adam and his book bag was conducted, EAHS officials had reasonable grounds for suspecting that the search would produce evidence of an infraction of a school rule or policy.⁵⁴  Specifically, the officials were in possession of a drawing depicting numerous violent acts being perpetrated against EAHS, its students, and staff. In addition, Adam had admitted that the drawing was his prior to the initiation of the search. Given that school officials have a significant interest in deterring misconduct on the part of students,⁵⁵  and the fact that Adam had admitted to drawing the sketch depicting large-scale acts of violence directed at EAHS, the decision to search Adam was appropriate under the circumstances.⁵⁶ 

The search was also reasonable in scope and not overly intrusive under the circumstances. Following Adam's admission of responsibility for the drawing, EAHS officials searched his book bag, including textbooks and notebooks found in the bag, and Adam's person, including his wallet. Without question, searching a student's person and his book bag is a process invasive of personal privacy, requiring justification.⁵⁷  Justification for the scope of the search was present in this case based on the facts supporting the initial decision to search.⁵⁸ 

Because the search of Adam by EAHS officials was reasonable at its inception, and was conducted in a reasonable manner when balanced against the school's interest in ensuring the safety and welfare of students, Adam's Fourth Amendment claim fails.

C

Adam's third claim alleges that he was denied his procedural due process right to a hearing before being removed from EAHS. Students have a "legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by ... [the Due Process] Clause."⁵⁹  At a minimum, "students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing."⁶⁰ 

Adam had no formal hearing before the Ascension Parish School Board before being removed from EAHS and transferred to the alternative school. But, Adam had admitted to school officials his responsibility for the drawing as well as his ownership of the box cutter. Whether a student "admitted the charges" leveled against him is "relevant in determining substantial prejudice or harm."⁶¹  This is so because one of the primary purposes of expulsion hearings is that of confirming whether the student threatened with expulsion actually committed the conduct for which he is being punished. Once a student has admitted his guilt, the need for a hearing is substantially lessened.⁶² 

In addition to Adam's admission, his mother signed a written waiver of his right to a hearing. A parent may waive her child's due process rights to notice and a hearing prior to expulsion, provided that the waiver is made voluntarily, knowingly and intelligently.⁶³  In the context of school disciplinary hearings, a waiver has been considered effective when it was placed in writing after a student's parents consulted with an attorney, was signed after all potential repercussions and consequences had been rationally evaluated, and stated in several places that the student was entitled to a hearing.⁶⁴ 

Mary LeBlanc signed a form waiving Adam's right to a hearing after discussing the matter with Ascension Parish School Board hearing officer Linda Lamendola. LeBlanc had been told by school officials that her son was entitled to a hearing. She was presented with a range of options and probable outcomes by Lamendola, including the option of pursuing a hearing, which Lamendola indicated had little chance of success, and the option of waiving her right to a hearing and enrolling her son immediately in the alternative school. After weighing the alternatives, LeBlanc made a rational decision to waive the hearing and enroll Adam in the alternative school. Based on this evidence in the record, Adam's contention that his mother's waiver was made involuntarily is without merit.⁶⁵ 

III

Adam did not brief whether the district court erred in granting summary judgment in favor of those defendants sued in their official capacities. This issue is waived. We find that the district court properly granted summary judgment as to Adam's Fourth Amendment and Procedural Due Process claims. While we cannot agree with its finding that there was no violation of the First Amendment, we affirm its judgment on its alternative ground that Principal Braud is entitled to qualified immunity.

The judgment of the district court is AFFIRMED.